DWP’s changes to PIP regulations ruled 'unlawfully discriminatory'

By Agencies

December 22, 2017

On 21 December 2017 the High Court found that part of the rules governing Personal Independence Payments are unlawfully discriminatory against people with mental health impairments. The Public Law Project’s client, RF, won on all three grounds of her challenge (RF v Secretary of State for Work and Pensions).

The judge quashed the 2017 Personal Independence Payment (PIP) Regulations because they discriminate against those with disabilities in breach of Human Rights Act 1998 obligations. Because they were discriminatory, the judge also found that the Secretary of State did not have lawful power to make the Regulations (i.e. they were ‘ultra vires’), and that he should have consulted before making them, because they went against the very purpose of what the PIP regime sought to achieve.

The judge heard that the Regulations were laid by negative resolution in February 2017, received relatively little parliamentary attention, and were rushed through the parliamentary process by the Secretary of State without prior reference to checks by relevant committees. Contrary to the Secretary of State’s defence, the judge found that the decision to introduce the Regulations was "manifestly without reasonable foundation" and commented that the wish to save money could not justify such an unreasonable measure.

During the course of the trial, the Secretary of State accepted that the testing carried out for PIP had not looked at whether the basis for treating those with psychological distress differently was sound or not, and the testing actually done was limited.

RF’s claim was supported by The National Autistic Society, Inclusion London, Revolving Doors and Disability Rights UK. All of those organisations gave statements to the court that the Regulations were unfair and that the intention to treat those with psychological distress differently had not been made clear in the early PIP consultation stages.

The claim was also supported by two interveners: Mind and the Equality and Human Rights Commission (EHRC). The EHRC made written submissions to the Court on the ongoing and persistent breaches by the UK Government of its obligations under UN Convention on Rights of Persons with Disabilities arising from its austerity measures. The Judge found that this inconsistency with the UN Convention supported his finding that the measure had no objective justification.

RF commented: "This judgment is important for a community of people with mental health problems fighting for their lives against discrimination."

The Government intends to appeal the decision. The Regulations will not be quashed until the Court of Appeal decides whether or not the appeal should proceed. RF is anticipating a decision on this in early 2018.

Tracey Lazard, CEO of Inclusion London said, “This is a hugely important case. It challenges the discriminatory way the government treats disabled people with mental health support needs. The outcome can make a difference to thousands upon thousands of disabled people. We have always believed that these changes are discriminatory and unfair and should have never been introduced. It is incomprehensible that the government pledges more support for people with mental health support needs and at the same time introduces, through the back door regulation changes that prevent many thousands of disabled people with mental health support needs from qualifying for this essential benefit.

"The government’s actions to change PIP regulations and single out people who cannot travel because of psychological distress are a brutal attack on the rights of disabled people. Today’s case illustrates the lack of concern for disabled people and the government’s inability to listen to us and engage with us. It is extremely worrying that many of us feel the legal action is the only way for us to get heard”.

Linda Burnip, co-founder of Disabled People Against Cuts said, “We are pleased with the judgement today. It will make a huge difference for thousands of disabled people with mental health support needs.

"We have to remember that this challenge is taken in a context when the UN Committee on the Rights of Persons with Disabilities found systematic and grave violations of disabled people’s rights a year ago. And again in August it called the situation disabled people are in a ‘human catastrophe’. The UN specifically called on the Government to repeal changes to PIP regulations because they breach our human rights under the Convention”.

Paul Farmer, Mind Chief Executive, said, “This ruling is a significant victory for people with mental health problems. It acknowledges that the regulations discriminated against people with mental health problems and upholds the principle that PIP should look at the impact your condition has on your life, not what kind of condition you have.

If the ruling is allowed to stand then more than 160,000 people with mental health problems will be able to access the support they should have been entitled to all along. This support is what can make the difference between whether people can get to work or appointments, see friends and family and live independent lives. We are proud to have supported Public Law Project and their client RF to get these regulations overturned.

“The judgment is clear that the Government has no evidence for its claim that people who experience psychological distress need less support than other disabled people. The Government’s stance on this issue is symptomatic of all the deep concerns that we have about the benefits system as a whole – it just does not understand mental health problems and the impact they can have on a person’s life.

“The Government now needs to accept the judgment it has been given and start making sure that people who struggle to plan and make a journey because of their mental health will get the financial support they are entitled to.”

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